Studoc Paper 2 Flashcards
Catherine has brought a claim for damages for personal injury against Mangal Meze Limited (“MM”), which operates a restaurant where she suffered an accident. In paragraph 2 of her particulars of claim she set out the circumstances of the accident, in which she slipped on water in a corridor while on her way to the toilet. In paragraph 3, she alleged that the accident was caused by MM’s breach of its statutory duty under the Occupiers’ Liability Act 1957 and set out particulars of the breach in sub-paragraphs (a)–(e).
In its defence, MM did not admit the facts stated in paragraph 2 of the particulars of claim. In response to paragraph 3, MM denied breach of statutory duty and stated that on the doors leading to the toilets there were signs saying ‘Caution, cleaning in progress’, that further signs had been put out stating ‘Caution, wet floor’ and that in all the circumstances it took reasonable care to ensure Catherine’s safety and that of the general public.
After filing and serving the defence, MM’s solicitors realised that they had failed to deal with paragraph 3(d) of the particulars of claim, which alleged that MM ‘allowed pools of water to gather dangerously in the corridor’. MM states that any water present in the corridor was as a result of the cleaning process, of which adequate warning had been given.
What is the best advice to give to MM’s solicitors as to the next step to take in order to deal with the failure to respond to paragraph 3(d)?
[A] They should ask for Catherine’s written consent to amend their defence.
[B] They should make an application to the court to ask for permission to amend their defence.
[C] They should make an application to amend, as, unless the defence is amended, the allegation will be taken as admitted.
[D] The nature of their defence means the allegation shall be taken as denied without the need to amend their defence.
ANSWER
[A] They should ask for Catherine’s written consent to amend their defence.
CPR 17.1 (2)(a)
[A] is the best advice. Catherine may consent to the amendment and it is the most appropriate thing to do to ask her first. CPR 17.1 (2)(a)
[B] is not the best advice. There is no need to incur the costs of an application to court. Asking Catherine for written consent is more efficient.
[C] is wrong. As the nature of the case has been set out, the allegation shall be taken as requiring proof. CPR 16.5 (3)-(5)
[D] is wrong. See C above.
Rahul has sued his local Council (“the Council”), having tripped on an uneven pavement and broken his ankle. The Council originally served a defence defending the claim on the basis that the measurement of the ‘trip’ was only 1.5cm and, therefore, was not a tripping hazard. The Council has now found its inspection records and has applied to the court to amend its defence to include an additional argument, that it also carried out adequate inspections of the pavement.
What order is the court most likely to make?
[A] That the Council may amend its defence with no order as to costs.
[B] That the Council may amend its defence and the costs of the application will be costs in the case.
[C] That the Council may amend its defence but must pay the costs of the application and the costs arising from it.
[D] That the Council may amend its defence and the costs of the application will be reserved until the final hearing.
ANSWER
[C] That the Council may amend its defence but must pay the costs of the application and the costs arising from it.
See: PD17.
You have recently been instructed by Farnham Estates (“FE”), the Defendant to a personal injury claim. Its Managing Director, Andrew, has been conducting proceedings so far. Donna, the Claimant, is a litigant in person.
After examining the papers, you realise that Donna has failed to comply with a number of directions the court made at the first case management conference. Donna failed to file a list of documents on time, and is yet to file or serve witness statements. Two months have passed since the court’s direction deadline for serving witness statements expired. Andrew tells you in conference that FE is yet to file or serve witness statements too. He does not anticipate any problems in doing so immediately as all relevant witness statements have already been drafted. They were prepared for the personal injury claim they successfully defended at trial on the same facts brought by Donna two years ago.
You notice in the particulars of claim that Donna has failed to attach the medical report on which she purports to rely.
Andrew informs you that he wishes to make an application to strike out Donna’s claim and asks for your advice. On which ground is his application most likely to succeed?
[A] That the claim be struck out for failure to comply with the court order as to the date by which the list of documents should be filed.
[B] That the claim be struck out for failure to serve the witness statements, which amounts to an abuse of process.
[C] That the claim be struck out as it is an attempt to re-litigate previously decided matters, which amounts to an abuse of process.
[D] That the claim be struck out as the particulars of claim do not comply with the relevant Practice Direction.
ANSWER
[C] That the claim be struck out as it is an attempt to re-litigate previously decided matters, which amounts to an abuse of process.
White Book 2021 at 3.4.5
See commentary in the White Book 2021 at 3.4.5 - (first 3 paragraphs) ;
Commentary to explain why [D] is incorrect in the White Book 2021 at 3.4.1
Your client is the Claimant and has brought a claim in the County Court against the First and Second Defendant. All three parties were given permission to rely on expert evidence. After the exchange of expert reports, the Second Defendant admitted liability and the Claimant discontinued his claim against the First Defendant. Your client asks whether he can rely on the expert’s report which was served by the First Defendant while she was still a party to the proceedings.
Which of the following best answers your client’s question?
[A] The Court will allow your client to rely on the expert’s report without specific permission, but your client should advise the Second Defendant that he intends to rely on that report and the purpose for doing so.
[B] Your client will be permitted to use the expert’s report as evidence at trial provided that the First Defendant gives her permission for the report to be used.
[C] Your client will only be permitted to rely on the expert’s report if he obtains permission of the Court to do so.
[D] Your client may rely on the expert’s report as evidence at trial without permission of the Court but only with the written agreement of both the First and Second Defendants.
Correct answer:
[A] The court will allow your client to rely upon the expert’s report without specific permission, but your client should advise the Second Defendant that he intends to rely upon that report and the purpose for doing so.
Commentary at 35.11.1 of the White Book 2021
[A] This is best answer to the client’s question as, under CPR 35.11, where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial. The commentary at 35.11.1 of the White Book 2021 refers to the case of Gurney Consulting Engineers v Gleeds Health and Safety Limited [2006] EWHC 43 (TCC) where it was decided that it was not necessary for a party to seek permission to rely upon an expert’s report which had been disclosed by a party who had ceased to be involved in the proceedings, even though the court had not given specific permission for the remaining parties to rely upon those reports, but the party seeking to so rely should advise the other remaining parties which reports they intended to rely upon and for what purpose.
[B] This is wrong because there is nothing under CPR 35.11 which requires the parties to have the court’s and the First Defendant’s permission to rely upon an expert’s report disclosed by another party. (CPR 35.11 and White Book 2021 at 35.11.1).
[C] This is wrong because there is nothing under CPR 35.11 which requires the parties to have the court’s permission to rely upon an expert’s report disclosed by another party, even though there is the expectation that the party seeking to rely upon the report will inform the remaining parties. (CPR 35.11 and White Book 2021 at 35.11.1).
[D] This is wrong because there is no requirement under CPR 35.11 for the party wishing to rely upon the report needing to seek the agreement of the First and Second Defendants.
You are instructed by Mortimer, a solicitor, who is acting on behalf of the Claimant in a fast track personal injury claim. In accordance with the fast track directions, Mortimer has served statements from Ralph and June in addition to his client’s statement. Mortimer has also served a notice to admit all the relevant facts contained within Ralph’s statement. No reply is received to the notice. The trial is listed in 25 days’ time. Mortimer asks for your advice as to whether, in the circumstances, Ralph and June need to be called to give evidence at trial.
What is the correct advice to give Mortimer as to whether it is necessary to call the witnesses?
[A] June needs to be called as a witness, but Ralph does not.
[B] It is not necessary to call Ralph or June as facts can be proved at any hearing by the witnesses’ evidence in writing, which has been served.
[C] June needs to be called as a witness. Ralph will also need to be called if the Defendant responds to the notice to admit, requiring that the facts stated in the notice be proved.
[D] It is necessary to call Ralph and June if it is intended to rely on their evidence.
ANSWER
[D] It is necessary to call Ralph and June if it is intended to rely on their evidence. CPR 32.5(1).
[A] This is wrong. Although CPR 32.18 provides that a party may serve notice on another party requiring him to admit the facts specified in the notice and the notice must be served no later than 21 days before the trial (which it has been here), the effect of that does not override the operation of CPR 32.2 and CPR 32.5 and the witnesses must be called to prove the facts. There is no obligation on the party on whom the notice is served to respond to it. If the witnesses are called but only to prove those facts contained within the notice to admit facts, this may potentially seriously limit the client’s case especially as the burden would ordinarily rest on the claimant to prove the case.
[B] This is wrong. CPR 32.2 (1) provides that the general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved (a) at trial, by their oral evidence given in public and (b) at any other hearing, by their evidence in writing. The distractor here refers to “any hearing”, which is wrong. Here, there is obviously to be a trial and therefore (a) applies as does CPR 32.5 which provides that if (a) a party has served a witness statement; and (b) he wishes to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence
[C] This is wrong. See CPR 32.18
[D] This is the correct answer. A party cannot be compelled to call its own witnesses. However, if it is intended to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence – CPR 32.5(1). The notice to admit facts is an irrelevance on the facts.
Jenny is the managing director of an art school, Jen Art Group Limited (“JAG”). Jenny ordered a supply of art materials for the school from Balvinder, a sole trader, who trades as Best Art Supplies, at a total cost of £106,000. Jenny paid in full and Balvinder agreed to deliver the items the following day. When the goods arrived, Jenny discovered that most of the paint containers had split during transit causing extensive damage to all the items in the crate, rendering them unusable. She asked Balvinder to either refund the price paid or replace everything she had ordered. Balvinder refused to do so, contending that the risk of any damage to the goods during transit was to be borne by JAG. Balvinder also argued that even if he bore the risk during transit, JAG would only be entitled to reject the paint containers that had split and not the remaining goods which were protected by plastic during transit. In pre-action correspondence, on two separate occasions, Balvinder offered to take part in a mediation to try to resolve the issues in dispute. Jenny contends that the terms of the contract are unclear and is keen to have the dispute aired and resolved in court. She did not want to engage in mediation and did not respond to this aspect of the correspondence.
You are now instructed by Balvinder. Balvinder asks for your advice as to how Jenny’s failure to respond to his request to use alternative dispute resolution (ADR) might affect any order as to costs in the event that JAG succeeded in its claim.
What is the best advice to give Balvinder as to the reason why JAG is likely to be penalised in costs?
JAG is likely to be penalised in costs because
[A] the Practice Direction – Pre-Action Conduct and Protocols requires parties to engage in mediation or some other form of ADR to enable them to settle their dispute before issuing proceedings.
[B] the court always regards silence in the face of an invitation to use ADR as itself unreasonable, regardless of whether there was a good reason for refusing to engage in mediation.
[C] Balvinder is likely to persuade the court that JAG Ltd acted unreasonably in refusing ADR in all the circumstances of the case applying the Halsey factors and, as a general rule, silence in the face of an invitation to use ADR is likely in itself to be regarded as unreasonable.
[D] the court requires parties to consider the possibility of settlement at all times and if there is non-compliance the court can make an order that the party at fault pays the costs of the proceedings or part of the costs of the other party.
ANSWER:
[C] Balvinder is likely to persuade the court that JAG acted unreasonably in refusing ADR in all the circumstances of the case applying the Halsey factors and, as a general rule, silence in the face of an invitation to use ADR is likely in itself to be regarded as unreasonable.
Paras 2 and 3 of the White Book 2021 at 44.2.24
[A] This is not the best answer. The PD requires parties to consider not engage in ADR. PD-Pre-Action Conduct and Protocols C1-006 para 8 of the White Book 2021
[B] This is not correct. Although as a general rule, silence in the face of an invitation to participate in ADR is regarded as unreasonable (see PGF II SA v OMFS noted in the White Book 2021 at 44.2.24) the use of the word “always” makes this statement wrong.
[C] This is the best answer – the burden of showing the winning party should face a costs sanction for unreasonable refusal to use ADR is on the unsuccessful party (Best Art Limited). The court will look at the Halsey factors (see Paras 2 and 3 of the White Book 2021 at 44.2.24) and will also take into account the fact that, as a general rule, a failure to respond at all to an invitation to use ADR is likely to be unreasonable (Halsey as extended by PGF II SA (White Book 2021 at 44.2.24, para 3), so this is the best/most accurate answer. See also PD Pre-Action Conduct and Protocols, para 11 (in the White Book 2021 at C1-006)
[D] This is also a true statement (see PD Pre Action Conduct and Protocols, paras 9, 14 and 16 in the White Book 2021 at C1-006 and C1-008) but not the best answer here as it does not mention the Halsey test, which sets out the principles on which an adverse costs order would be made for refusing ADR.
What is the most appropriate response to his query?
[A] The claim may be started in the High Court as the value of the claim is more than £100,000.
[B] The claim may be started in either the High Court or the County Court as the value allows for either jurisdiction to be used.
[C] The claim must be started in the High Court as the value of the claim is more than £100,000.
[D] The claim must be started in the High Court as the value of the claim is more than £25,000.
Answer
[B] The claim may be started in either the High Court or the County Court as the value allows for either jurisdiction to be used.
PD7A para 2.1
Explanation
[A] is not the best advice. Whilst it is correct to say that the claim may be started in the High Court, it does not allow for the fact that, for whatever reason, the claimant may choose to begin the claim in the County Court for the reasons stated at [B]
[B] is the best advice as this follows PD7A para 2.1. The claimant has a choice under para 2.1 which provides that proceedings may not be started in the High Court unless the value of the claim is more than £100,000. On value alone, the claim is worth more than £100,000 but, for whatever reason, the claimant may choose to begin proceedings in the County Court.
[C] is not the best advice as it is wrong for the reasons stated at [B] [D] is not the best advice as it is wrong for the reasons stated at [B]
What is the correct advice to give Balvinder?
[A] Balvinder should file an application notice stating the precise order sought and explaining why he is seeking the order. The notice should be served on JAG as soon as practicable after it is filed and at least three days before the hearing date, together with any written evidence in support and a draft order.
[B] Balvinder should file an application notice stating the precise order sought. He does not need to serve a copy of the application on JAG as he wishes to have the matter dealt with urgently. Once the court order has been made, he must serve a copy of the application notice, any evidence in support and the court order on JAG.
[C] Balvinder should file an application notice stating the precise order sought. He can make an application “without notice” as he considers the matter to be urgent or it is otherwise desirable to do so in view of Jenny’s refusal to consent to the request for inspection. During the application, Balvinder will owe a duty of full and frank disclosure, including disclosure of all matters adverse to it.
[D] Balvinder should file an application notice stating the precise order sought and explaining why he is seeking the order. The notice should be served on JAG at least 14 days before the hearing, together with evidence in support explaining the grounds for the application.
ANSWER:
[A] Balvinder should file an application notice stating the precise order sought and explaining why he is seeking the order. The notice should be served on JAG Limited as soon as practicable after it is filed and at least three days before the hearing date together with any written evidence in support and a draft order.
CPR r.23.3(1), r. 23.4(1), 23.6 and r.23.7
[A] This is the best answer. See CPR r.23.3(1), r. 23.4(1), 23.6 and r.23.7.
[B] The test for making an application without serving an application notice is correct (see CPR r 23.4(2) and PD 23A, para 3(1)) as is the second part of the answer (see CPR r.23.9), but this is not the correct answer as there is nothing on the facts which indicates urgency. Balvinder’s desire to resolve matters urgently would not satisfy the test.
[C] It is correct that a duty of full and frank disclosure is owed where an application is made without notice (see White Book 2021 at 25.3.5) but the test for making an application without notice is not correct (that applies only where an interim remedy is sought before a claim form has been issued (see CPR r. 25.2(2)(b)) and the refusal to allow inspection does not mean that this is a case of exceptional urgency which justifies an application being made without notice.
[D] is wrong because it the notice period is 3 days and not 14. See CPR r.23.7(1) (b). This answer confuses the notice period for most applications with those such as summary judgment or interim payments which require 14 days’ notice to be given.
What is the best advice to give Balvinder as to why the court will reinstate the claim and grant relief?
[A] Although there was a failure to comply with the original order and the unless order, the court will consider that Jenny’s email to Balvinder requesting an extension of time demonstrates that she has considered the requirement to conduct litigation efficiently and to comply with rules, practice directions and orders.
[B] Although the failure to comply with the unless order is likely to be regarded as serious and significant, the court will consider the reason why the default occurred and evaluate all the circumstances, as well as the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and court orders.
[C] The failure to comply with the original order and the unless order was trivial, there was a good reason why the default occurred, the application for relief was made promptly and, in these circumstances, there is no requirement for the court to consider the need for litigation to be conducted efficiently and at proportionate cost, and to enforce compliance with rules, practice directions and orders.
[D] The failure to comply with the original order and the unless order was trivial, but the court will assess whether the breach imperilled future hearing dates,
why the default occurred and the need to enforce compliance with rules, practice directions and orders.
ANSWER:
[B] Although the failure to comply with the “unless” order is likely to be regarded as serious and significant, the court will consider the reason why the default occurred and evaluate all the circumstances, as well as the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and court orders.
White Book 2021 at 3.9.4 to 3.9.6
[B] This is the best answer as it most accurately describes the test in CPR r.3.9
and the Denton Guidelines in the White Book 2021 at 3.9.4 to 3.9.6.
[A] is not the best answer. It makes reference to the test in r.3.9 but does not refer to the Denton test (see White Book 2021 at 3.9.3 to 3.9.6).
[C] is not the best answer because it focuses on the whether the breach is trivial whereas the question after Denton is to assess whether the breach has been serious or significant - see White Book 2021 at 3.9.4. The 3rd stage also requires an assessment of all the circumstances as well as the CPR r.3.9(1) (a) and (b) factors, although the other matters stated are correct (see White Book 2021 at 3.9.6).
[D] is not the best answer because it is incomplete in that it misses out the need for litigation to be conducted efficiently and at proportionate cost, otherwise it is correct. See White Book 2021 at 3.9.3 to 3.9.6.
Which of the following describes the order that the court is likely to make in respect of costs in these circumstances?
[A] It will order that JAG is entitled to the costs of the proceedings as it won the action and recovered damages in the sum of £60,000.
[B] It will, unless it considers it unjust to do so, order that JAG is entitled to costs up until the expiry of the relevant period in respect of the original Part 36 offer. As JAG did not obtain a judgment more advantageous than the original offer or the improved offer, Balvinder is entitled to costs from the date on which the relevant period expired in respect of the original offer and interest on those costs.
[C] It will order that JAG is entitled to the costs of proceedings as the improved offer operated as the withdrawal of the original offer and the making of a new Part 36 offer. The relevant period for acceptance of the improved offer remained open until the end of the trial. JAG is therefore entitled to costs up to the expiry of the relevant period of the improved offer and, as judgment was given immediately at the end of the trial, there are no costs from the expiry of the relevant period which should be awarded to Balvinder.
[D] It will order that JAG is entitled to no order for costs as it acted unreasonably in failing to accept Balvinder’s original Part 36 offer or the improved offer, both of which were more advantageous than the judgment received at trial.
ANSWER:
[B] It will, unless it considers it unjust to do so, order that JAG is entitled to costs up until the expiry of the relevant period in respect of the original Part 36 offer. As JAG did not obtain a judgment more advantageous than the original offer or the improved offer, Balvinder is entitled to costs from the date on which the relevant period expired in respect of the original offer and interest on those costs.
CPR r.36.17 (1) (a) and (3).
[B] is the best answer as it takes full account of the fact that Jenny won the action but failed to obtain a judgment more advantageous than the amount of the original Part 36 offer. The improved offer is treated not as the withdrawal of the original offer but as a new Part 36 offer on improved terms (see CPR r.36.9(5)). As the improved offer was made less than 21 days before trial, there is no need to specify a relevant period (see CPR r.36.5(1)(c) and (2) and instead the relevant period is the period up to the end of the trial (see CPR r.36.3(g)). JAG did not accept the improved offer within that relevant period. Both offers are therefore relevant to the question of costs and JAG should pay Best Art’s costs from the date of expiry of the relevant period in respect of the original offer and interest on those costs. See CPR r.36.17 (1) (a) and
(3).
[A] is not the most appropriate order to make as it fails to take account of the fact that JAG failed to receive a judgment which was more advantageous than BAL’s Part 36 original or revised offers. See CPR r.36.17 (1) (a) and (3).
[C] is not the best answer. Where an improved offer is made (as here), it doesnot operate to withdraw the original offer, but instead takes effect as a new offer on improved terms (see CPR r.36.9(5)). It is correct that the relevant period for accepting the improved offer is the end of the trial (see CPR
r.36.5(2) and 36.3(g). As JAG did not beat the original offer JAG should pay Best Art’s costs from the expiry of the relevant period for acceptance of the original Part 36 offer, unless the court considers it unjust. CPR r.36.17 (1) (a) and (3).
[D] is not the best answer as it fails to take account of the fact that JAG won theaction and recovered damages in the sum of £60,000 and so she should get at least some of her costs on the basis that costs follow the event.
At trial, what approach is the Trial Judge most likely to take in respect of Leonard’s evidence?
[A] Attach some weight to the evidence as the note was made contemporaneously at the time of delivery of the goods and there is no evidence that Leonard and Jenny collaborated with each other making the statement.
[B] Exclude it, because it goes to a key issue in the case, and as Leonard is not being called, his evidence cannot be challenged by cross-examination.
[C] Attach no weight to it as the evidence goes to a key issue in the case, it cannot be tested by cross-examination and as Leonard is an employee of JAG, he may have a motive to misrepresent matters.
[D] Order that Balvinder should call Leonard as a witness and cross-examine him on the statement.
ANSWER
[A] Attach some weight to the evidence as the note was made contemporaneously at the time of delivery of the goods and there is no evidence that Leonard and Jenny collaborated with each other making the statement
s.4(1) of Civil Evidence Act 1995
[A] is the best answer on these facts. See s.4(1) of Civil Evidence Act 1995.
[B] is not the best answer because, although the court could exclude theevidence under its general power to exclude evidence under CPR r.32.1(2), S1(1) CEA 1995 provides that evidence should not be excluded on the ground that it is hearsay.
[C] is not the best answer. The statement appears to have been madecontemporaneously on the day the goods were delivered, and there appears to be no evidence that the statement was an edited account or made in collaboration with Jenny or that Leonard had any motive to conceal matters. See s.4 CEA 1995.
[D] is not the best answer. Although section 3 of the CEA 1995 and CPR r.33.4provide that the court may permit the other side to call the maker of the hearsay statement to be cross-examined on the contents of the statement, this is only likely to be done on the application of any other party. As Balvinder has not made such an application here, the court is not likely to direct this on its own initiative. See Section 3 CEA 1995 and CPR r.33.4.
Accepting that the court has a wide range of case management powers, Balvinder’s solicitors ask you how the court is most likely to proceed when the trial resumes in the morning.
What is the best advice to give them in response?
[A] That, although the trial may proceed, the court is most likely to order that the trial be adjourned to enable the Claimant to consider her position and, as necessary, to issue fresh proceedings against the estate of the deceased as no judgment or order can be binding on a deceased party in the current proceedings.
[B] That, although the trial may be adjourned or stayed, the court is most likely to order that the trial should proceed in the absence of a personal representative; if the court makes such an order, any judgment or order will be binding on the estate of the deceased.
[C] That, although the trial may proceed, it is most likely to be adjourned or stayed, so that a personal representative can be appointed to represent the estate of the deceased; in that event, any judgment or order will be binding on the deceased’s estate.
[D] That, although the trial may be adjourned or stayed, the court is most likely to order that the trial should proceed in the absence of a personal representative, but any judgment or order will not become binding on the estate of the deceased or be enforceable until such time as a personal representative has been appointed.
Answer:
[B] That, although the trial may be adjourned or stayed, the court is most likely to order that the trial should proceed in the absence of a personal representative; if the court makes such an order, any judgment or order will be binding on the estate of the deceased.
CPR3.1, CPR 19.8(1) and 19.8 (5)
Explanation
[A] This is not the best answer as although the court has a general power of casemanagement and a CPR 3.1(2)(b) to adjourn a hearing, there is no need to do so here as the claim can proceed in the absence of a PR – CPR 19.8(1) and any judgment can binding – 19.8(5).
[B] This is the best answer. This answer recognises that the court does have powerunder CPR 3.1 to manage a case, but under CPR 19.8(1) where a person who had an interest in a claim has died and that person has no personal representative, the court may order the claim to proceed in the absence of a person representing the estate of the deceased and under 19.8 (5) where such an order has been made, any judgment or order is binding on the estate of the deceased. This is the most likely outcome here given that all of the evidence has been heard and there is no merit to wasting the court’s time or costs in adjourning the matter.
[C] This is not the best answer as, whilst it can be done, it is unlikely at this stage ofthe proceedings given that the evidence has been heard and only judgment is to be given. Had the death occurred at an earlier stage of the proceedings, it is possible that the court may have made an order appointing a person to represent the estate of the deceased under 19.8 (1)(b).
[D] This is not the best answer as although the court has a general power of casemanagement under CPR 3.1(2) to adjourn or stay proceedings, the claim can proceed in the absence of a PR – CPR 19.8(1) but it is wrong to say that any judgment only becomes binding or enforceable when the PR is appointed as this is provided for at CPR 19.8(5).
You act for Toby. Toby has brought a claim for damages for personal injury following an accident at work on 5 April 2018. Toby was employed as a bricklayer for a construction company, West Bridge Limited (“WBL”). On the day of the accident, while at work, he fell from scaffolding sustaining a back injury, as a result of which he continues to suffer ongoing lower back pain. In January 2020, Toby instructed solicitors. At that time, the only medical evidence available was a letter from Toby’s GP confirming that:
* he had attended several appointments in 2018 with complaints of back pain; * he received treatment;
* he was issued with sick notes due to his injury as evidence that he was unable to work at that time.
Toby’s solicitors initially valued the claim as being in the region of £55,000. While above the fast track threshold, the solicitors have followed the Pre-Action Protocol for Personal Injury Claims. It is now December 2020 and no further medical evidence has been received.
How should Toby’s solicitors best proceed in order to comply appropriately with the Pre-Action Protocol for Personal Injury Claims ?
[A] Toby’s solicitors should send a letter of claim without any medical evidence as there is no requirement to do so if an expert’s report is not yet available.
[B] Toby’s solicitors should send a letter of claim without the GP’s letter but with an indication that an expert’s report will be served as soon as it is available.
[C] Toby’s solicitors should include a copy of the GP’s letter as medical evidence in the letter of claim to allow WBL to form a view of the likely level of damages.
[D] Toby’s solicitors should wait until they obtain a medical report from an appropriate expert before they send a letter of claim.
What is the correct advice to give as to how the court is likely to respond to WBL’s failure to engage in the ADR process?
[A] The court must award costs on an indemnity basis to reflect WBL’s failure to engage in the ADR process, if unreasonable.
[B] The court may award costs on an indemnity basis to reflect WBL’s failure to engage in the ADR process, if unreasonable.
[C] The court may compel WBL to engage in ADR pursuant to the preaction protocol for personal injury claims in order to save time.
[D] The court may compel WBL to engage in ADR pursuant to the preaction protocol for personal injury claims in order to save costs.
ANSWER
[B] The court may award costs on an indemnity basis to reflect WBL’s failure to engage in the ADR process, if unreasonable.
CPR 1.4 and commentary at para. 1.4.4 of the White Book 2021
[A] is incorrect as, whilst the court does have a range of powers to encourage theparties to co-operate and engage with ADR under CPR 1.4, the rules and commentary do not state that they can require the claimant to make a Part 36 offer.
[B] is correct. See CPR 1.4 and commentary at para. 1.4.4 of the White Book 2021. The court has a duty to actively manage cases and that includes encouraging the parties to use ADR if the court considers that appropriate and facilitating the use of such a procedure (CPR 1.4(2)(e). That includes using its power over costs to encourage co-operative conduct on the part of litigants and to discourage unreasonable conduct (commentary at para. 1.4.4 of the White Book 2021). These recommendations are brought into effect by CPR 44.2
and 44.4. The suggestion from the fact pattern is that the Defendant is being unreasonable here in refusing to engage with ADR. This is something Toby could point out to WBL at this stage (pre-issue) or which is likely to be considered by the court post-issue.
[C] is incorrect as, whilst the court does have the power to give directions orotherwise control the progress of the case under CPR 1.4, proceedings have yet to be issued and so the giving of any directions is premature on these facts.
[D] is incorrect. Despite what appear to be unreasonable refusal to respond toinvitations to negotiate, the court has no power to compel a party to engage in the ADR process. CPR 1.4(2)(e) provides only that active case management includes “encouraging the parties to use an alternative dispute resolution procedure..”
By when must WBL respond to the proceedings and what step may Toby take if WBL fails to respond?
[A] WBL must either file a defence or an acknowledgment of service within 14 days after service of the claim form, in default of which Toby may apply for summary judgment.
[B] WBL must either file a defence or an acknowledgment of service within 28
days after service of the claim form, in default of which Toby may apply for default judgment.
[C] WBL must file an acknowledgment of service within 14 days after service of the claim form followed by its defence within 28 days after service of the particulars of claim, in default of which Toby may make an application for summary judgment.
[D] WBL must file an acknowledgment of service 14 days after service of the particulars of claim followed by its defence 28 days after service of the particulars of claim, in default of which Toby may obtain default judgment.
ANSWER
[D] WBL must file an acknowledgment of service 14 days after service of the particulars of claim followed by its defence 28 days after service of the particulars of claim in default of which Toby may obtain default judgment
CPR 10.1, 10.3 & 15.4
[A] not correct as it is wrong. The time limits for responding follow the service ofthe particulars of claim, not the claim form (CPR 10.3 & 15.4) and summary judgment cannot be applied for before an AoS or a defence is filed.
[B] is not correct as the rules do not say that WBL must file a defence if it is ableto do so, only that it may file an acknowledgement of service if it is unable to
file a defence within the specified period. It is therefore not the best advice to give as, whilst much of that statement is true, it is not quite right.
[C] is not correct in the circumstances of the fact pattern. It stems from the wording of CPR 10.3 (1). Here the claim form states that the PoC are to follow and so (a) is relevant. Toby could apply for summary judgment in these circumstances, but the facts suggest that WBL has good grounds for defending Toby’s claim and just awaits its medical evidence (though this latter point will not prevent it from filing its defence).
[D] is correct. The rules providing for the time limits for responding to proceedings are set out in CPR 10.1, 10.3 & 15.4. This provides for WBL to respond by either filing a defence or an acknowledgment of service 14 days after service of the particulars of claim. On these facts, we know that WBL wishes to defend the claim but has not yet obtained its medical report. In filing an acknowledgement of service under CPR 10.1(3) (a) WBL therefore protects its position immediately and will then allow it 28 days to serve its defence (CPR 15.4(1)(b)). If it fails to either acknowledge service, or it acknowledges service but then fails to file a defence within the 28 days from service of the particulars of claim, the claimant would be entitled to obtain default judgment under CPR 12.3
By when must the amended particulars of claim be filed in these circumstances?
The amended particulars of claim must be filed [A] within 3 days of the date of the order.
[B] within 7 days of the date of the order.
[C] within 14 days of the date of the order.
[D] within 21 days of the date of the order.
ANSWER
[C] within 14 days of the date of the order.
[A] is wrong for the reason given in [C].
[B] is wrong for the reason given in [C].
[C] is correct because 14 days is the time limit given in 17 PD para 1.3.
[D] is wrong for the reason given in [C].
Your instructing solicitor asks what procedural steps WBL will have to take to bring the additional claim.
What is the correct advice to give in response?
WBL will have to
[A] file and serve a notice containing a statement of the nature and grounds of its additional claim against Tanner. WBL will need the court’s permission to file and serve the notice because it has already served its defence.
[B] seek the court’s permission to issue an additional claim against Tanner for a contribution or an indemnity because WBL has already filed its defence. The application for permission can be made without notice, unless the court directs otherwise.
[C] seek the court’s permission to issue an additional claim against Tanner for a contribution or an indemnity because WBL has already filed its defence. The request for permission will have to include an application to disapply the time limit for bringing a claim against Tanner because the accident happened over 3 years ago.
[D] issue a separate claim against Tanner for a contribution or an indemnity. If Tanner files a defence to WBL’s claim, then WBL can apply to consolidate both claims and the court will deal with them as a single action.
both claims and the court will deal with them as a single action.
ANSWER
[B] seek the court’s permission to issue an additional claim against Tanner for a contribution or an indemnity because WBL has already filed its defence. The application for permission can be made without notice, unless the court directs otherwise.
[A] is wrong because Tanner is not already a party to proceedings. This would be the correct procedure under CPR 20.6 if Tanner were already a party. Accordingly, WBL have to issue an additional claim against Tanner, they will need permission to do this because WBL have already filed their defence.
[B] is correct because Tanner is not an existing party to the proceedings. In order to being an additional claim WBL will have to apply under CPR 20.7. WBL will require the court’s permission because it has already filed its defence.
[C] is wrong. WBL’s additional claim against Tanner is for a contribution or an indemnity. Therefore pursuant to s.10 of the Limitation Act 1980 time does not begin to run until judgment is entered against WBL. There is consequently no need to apply to disapply the time limit.
[D] is wrong. Whilst at the conclusion of Toby’s claim (and assuming WBL is found liable in damages), WBL could issue a separate a claim against Tanner (as it has two years to do so from the date of judgment) this would be a wholly incorrect approach for WBL to take as the option clearly suggests a consolidation of the current claim and any subsequent claim against Tanner . CPR 20.7 sets out the correct approach.
What is the correct advice to give Toby as to whether an application for an interim payment is likely to be successful?
[A] Toby is likely to succeed in an application for an interim payment provided the court is satisfied that Toby will obtain judgment for a substantial amount of damages claimed against either WBL or Tanner, and that both are insured in respect of the claim.
[B] Toby is likely to succeed in an application for an interim payment, regardless of the number of defendants, on the basis that he is seeking only a small proportion of the overall damages claimed.
[C] Toby is unlikely to succeed in an application for an interim payment as liability as between the two Defendants is uncertain and so the court is unable to consider whether or not Toby will obtain judgment for a substantial amount of damages.
[D] Toby is unlikely to succeed in an application for an interim payment unless the Defendants come to an agreement between them as to which one will accept liability or, if liability is shared, come to an agreement as to the proportion of their respective liabilities.
Answer:
[A] Toby is likely to succeed in an application for an interim payment provided the court is satisfied that Toby will obtain judgment for a substantial amount of damages claimed against either WBL or Tanner, and that both are insured in respect of the claim.
CPR 25.7(e)(ii)(a).
[A] is the correct answer as this most accurately reflects the rules at CPR 25.7(e). The fact pattern indicates that Toby has a strong case on liability and so
satisfies the requirement that the court will be satisfied that, if the matter goes to trial, Toby would obtain judgement for a substantial amount of money (other than costs) against at least one of the defendants, even if the court cannot determine which. The question was mentions insurance in satisfaction of the condition at CPR 25.7(e)(ii)(a).
[B] is incorrect as that does not accurately reflect the rules. Whilst Toby can obtain an interim payment regardless of the number of defendants, this statement does not accurately set out the conditions which would need to be satisfied under CPR 25.7.
[C] is incorrect as that statement is wrong. An interim payment can be ordered against multiple defendants if the conditions under CPR 25.7(e) are met.
[D] is incorrect as that statement does not accurately reflect the rules. The defendants may come to such an agreement but that is not one of the conditions under CPR 25.7 and there is no indication on the facts that this is a possibility.
What is the correct advice to give Toby as to whether the court will grant permission for all three experts to give evidence at trial?
[A] The court must grant permission for all three experts to give evidence at trial as the matter is of multi-track value and so greater scope is allowed for expert evidence, including allowing each party to rely on their own evidence.
[B] The court is likely to grant permission for all three experts to give evidence at trial but only on the basis that it will also direct a discussion between the experts.
[C] The court is unlikely to grant permission for all three experts to give evidence at trial because the two Defendants’ experts agree with each other; the court has a duty to restrict expert evidence to that which is reasonably required to resolve the proceedings.
[D] The court is unlikely to grant permission for all three experts to give evidence at trial as the issues in dispute will be set out in a joint statement to the court following discussions between the experts. This will avoid the necessity of any expert giving evidence at trial.
Answer:
[C] The court is unlikely to grant permission for all three experts to give evidence at trial because the two defendants’ experts agree with each other; the court has a duty to restrict expert evidence to that which is reasonably required to resolve the proceedings.
CPR 35.1
[C] is the correct answer as this represents the likely approach the court will take. It has a duty to restrict expert evidence to what is reasonably required to resolve the proceedings under CPR 35.1 which in this case will result in only allowing one of the two experts who agree with each other.
[A] is incorrect as the court is not obliged to allow all three experts to be called and it is unlikely that the court will grant permission for all three experts to give evidence at trial in these circumstances (for the reasons given in [C]). Furthermore, whilst CPR 35.4(3A) provides that the court will normally only give permission for one expert on a particular issue in the small claims track or fast track, it is still the case that the fact that it is a multi-track matter is not determinative as indicated here.
[B] is incorrect as the granting of permission for experts to attend trial is not dependent on a direction that the experts hold discussions. The court has the authority to direct discussions between experts under CPR 35.12 but that is a discretionary power and permission for experts to attend trial to give evidence is not contingent on that provision as indicated in this statement.
[D] is incorrect as that statement is wrong. Whilst the court has the discretion to direct that the experts prepare a joint statement to narrow the issues under CPR 35.12(3), it is not a requirement, nor will it necessarily preclude the requirement for the experts to attend trial to give oral evidence.
All the events described above occurred within the applicable limitation periods. What would be the best advice to give at this time as to who, if anyone, Hickory should also add to the proceedings? [A] Only Jemima.
[B] Only Fosters.
[C] There is no need to add either Jemima or Fosters to the proceedings.
[D] Both Jemima and Fosters.
ANSWER
[A] Only Jemima
CPR R. 19.2(2)(b)
[A] Jemima allegedly gave a personal guarantee in respect of the very sum claimed. This is disputed on questionable grounds, but not grounds which the court can resolve without a trial. CPR R. 19.2(2)(b) is engaged: there is an issue (the personal guarantee here) involving the new party (Jemima) and the existing party which is connected to the matters in dispute in the proceedings and it is desirable to add that party so that the court can resolve that dispute. Thus, there is a good basis in law for adding Jemima. Also, it is sensible as a matter of practice. There is a dispute about whether Cole is liable for these sums, and, although that defence is weak, the possibility of Cole’s sole director being personally liable is likely to encourage settlement. There is also something of a question about Cole’s financial health.
[B] In principle, the Court’s discretion to join Fosters is engaged under CPR 19.2(2)(a) as joining Fosters would enable all the matters in dispute in the proceedings (especially the possible liability of Fosters to pay the fees) to be resolved. However, having considered the evidence, a view has been formed that although an argument, it is highly unlikely to succeed and even if it did, there is little if any likelihood that it will be able to recover damages and costs from Fosters. In any event, on the basis of the facts, the appropriate step would not be for Hickory to join Fosters to the proceedings but substitute Fosters for Cole.
[C] This is not the best answer for the reasons already set out at [A] and [B]
[D] This is not the best answer for the same reasons as in relation to [A] and [B].
Which of the following would be the best advice to give Hickory about how to respond to Cole’s settlement offer at this stage?
[A] Reject the offer but make a claimant’s Part 36 offer in the sum of £36,000.
[B] Reject the offer but make a Calderbank counter-offer in the sum of £30,000.
[C] Reject the offer but make a claimant’s Part 36 offer in the sum of £30,000.
[D] Reject the offer but make a Calderbank offer in the sum of £36,000.
ANSWER
[C] Reject the offer but make a claimant’s Part 36 offer in the sum of £30,000
CPR 36 13(3).
[A] This is not the best advice. This would be treated as a valid Part 36 offer. As a Part 36 offer has automatic costs consequences to include the proportion in relation to costs makes this offer too generous and not in accordance with the advice.
[B] This is not the best advice. This is a possible strategy, but not as effective as C. This is the most realistic offer to make on the figures but does not carry with it any of the highly advantageous consequences under CPR 36.17 should the claimant succeed. See the commentary at paragraph 36.2.1 of the WB 2021 which makes it clear that a Calderbank offer does not equate to a Part 36 offer in relation to the cost
consequences. As stated in the commentary, the court retains its discretion to take account of the Calderbank offer however, although it should ‘influence’ that discretion, it does not ‘govern’ it.
[C] This is the best advice. If the offer is made and accepted the costs payable will be paid on a SB (CPR 36 13(3)). Best advice is to make the Part 36 offer but prepare client for the fact that it is likely they will recover only 60% of their costs.
[D] This is not the best advice. This is a would, as in [A], be treated as a valid Calderbank offer however to include the proportion in regard to costs makes this offer too generous and not in accordance with your advice. Further, even though a more generous offer whether the court takes account of a Calderbank offer is at its discretion- see answer [B]
What is the correct advice to give to Hickory regarding the steps they need to take to deal with the disclosure direction at the CCMC in order to comply with the overriding objective?
[A] The parties do not need to do anything other than, at least 7 days before the CCMC, at a meeting or by telephone, discuss and endeavour to agree a proposal regarding the scope of disclosure.
[B] The parties do not need to do anything other than ensure that the representative who attends on their behalf is familiar with the case, and has sufficient authority to deal with any issues that are likely to arise regarding disclosure.
[C] At least 14 days prior to the CCMC, each party must file and serve a report describing the documents to be disclosed, their location and the costs involved in giving standard disclosure verified by a statement of truth, and at least 7 days prior to the CCMC, endeavour to agree a proposal regarding the scope of disclosure.
[D] At least 7 days prior to the CCMC, the parties must at a meeting or by telephone, discuss and prepare a joint disclosure report verified by a statement of truth which sets out the documents to be disclosed, their location and the costs involved in giving standard disclosure to each party, which must thereafter be filed with the court.
Answer
[C] At least 14 days prior to the CCMC each party must file and serve a report describing the documents to be disclosed, their location and the costs involved in giving standard disclosure verified by statement of truth, and at least 7 days prior to the CCMC, endeavour to agree a proposal regarding the scope of disclosure.
CPR 31.5
[A] is incorrect. CPR 31.5 relevant section. This is not a PI claim, therefore CPR 31.5 applies as MT. This is not the only step. Prior to agreeing proposals, parties must file and serve a disclosure statement.
[B] is incorrect. As with A - There are procedural steps to be taken prior to the CCMC although is correct to state that the person attending the CCMC must be fully familiar with the claim CPR.29.3(2)
[C] is correct – reflects what is set out in CPR 31.5
[D] in incorrect. No requirement for a joint disclosure statement
Hickory decide not to make any settlement offer despite your advice. The proceedings continue.
Hickory are increasingly concerned that, even if they succeed in their claim, Cole will not be able to pay their costs. Hickory ask you to advise on the prospects of success of an application for security for costs against Cole.
Will Hickory be able to obtain an order for security for costs in the circumstances?
[A] No; Cole’s registered offices are not outside the jurisdiction.
[B] No; Hickory is not a defendant.
[C] Yes; Cole is a company and there is reason to believe that it will be unable to pay Hickory’s costs if ordered to do so.
[D] Yes; there is a real risk that Cole will take steps to put its assets beyond reach.
ANSWER
[B] No; Hickory is not a defendant.
CPR 25.12
[A] Cole does not have its offices registered outside the jurisdiction, but this is not the reason that security for costs cannot be ordered against it: there are other grounds available (one of which is likely to apply, see below), but see [B] below.
[B] Hickory is a claimant, not a defendant, so CPR. 25.12 does not apply. Given that the summary judgment test is unlikely to apply, the alternative course of applying for a conditional order under Part 24 will also not avail.
[C] There are grounds for believing that Cole might not be able to pay costs ordered against it, but this does not assist given that Hickory are claimants.
[D] In addition to the reason set out in [B], this is also the wrong test – under CPR 25.13(2)(g), it is necessary that the claimant has in fact taken steps to put assets beyond reach, rather than a possibility that it might do so in future.
Hickory continue their claim. Fosters applies to be joined to the proceedings to bring its professional negligence claim. Before the hearing
of that application, Hickory apply to join Jemima to the proceedings. The court, in considering both applications, orders both Fosters and Jemima to be joined. The court lists the trial for two days. Having been joined, Jemima’s defence is that the personal guarantee is a forgery because she was elsewhere on 15 January. QUESTION 24
Proceedings continue. Disclosure and inspection take place. Hickory list as one of their documents the personal guarantee (“the document”).
What steps could Jemima take at this time if she wishes to dispute the authenticity of the document?
Jemima could
[A] within 14 days of inspection of it, serve notice that she wishes the document to be proved at trial.
[B] within 14 days of inspection of it, make an application to court for Hickory to prove the document at trial.
[C] within 7 days of disclosure of it, serve notice that she wishes the document to be proved at trial.
[D] within 7 days of disclosure of it, make an application to court for Hickory to prove the document at trial.
Answer
[C] within 7 days of disclosure of it, serve notice that she wishes the document to be proved at trial.
CPR 32.19 –
[A] is incorrect. Time runs from disclosure of the document not inspection.
[B] is incorrect. It is wrong to suggest that she would need to make an application for Hickory to prove the document [C] is correct and reflects the Rule.
[D] is incorrect. Same reasons as set out in [A] and [B]
